In an interesting decision last week, Justice Barry MacDougall of the Ontario Superior Court addressed the recurring problem of whether or not a vehicle was, without the consent of the owner, in the possession of someone other than the owner. Henwood v. Coburn involved a rented truck that was being driven by someone without a driver’s licence, who had driven off with the truck after assaulting his driver and taking the keys. Despite these facts, the court found that the owner had remained in possession of the truck and was liable for the plaintiff’s injuries.
The plaintiff, Henwood was a salesman of frozen meat. His supplier had rented the vehicle for Henwood while his own truck was being repaired. Henwood was a listed driver in the rental contract.
In the course of the events leading up to the accident, Henwood had been making sales calls, accompanied by the defendant Coburn, whom Henwood’s supplier had asked Henwood to train. The supplier had expressly directed Henwood not to allow Coburn (who had no driver’s licence) to operate the truck.
At the end of the work day, Henwood and Coburn went to a tavern together. When they emerged, Coburn wanted Henwood to drive him to Barrie. Henwood refused. So, Coburn “smacked him in the mouth”, grabbed the keys to the truck, got into the driver’s seat and started the vehicle. Henwood jumped into the passenger seat “to try to talk Coburn out of taking the truck”. According to Justice MacDougall’s reasons, the truck was already rolling when Henwood got in.
While sitting in the passenger seat, Henwood tried to persuade Coburn to stop. But he also gave him directions and cautioned him about driving too fast. It appears that Coburn ignored Henwood. Eventually, Coburn missed the highway to Barrie and went off the road, into a field. Henwood was injured in the accident.
Henwood sued Coburn as well as “Ontario Car” (the car rental company which owned the truck) and his own insurer, Pembridge. The latter claim was under the uninsured motorist coverage.
Coburn did not defend, but the Minister of Finance did file a defence on his behalf, pursuant to the Motor Vehicle Accident Claims Act.
Both the lessor and Pembridge took the position that Coburn had been in possession of the truck without the owner’s possession. Both parties brought motions for summary judgment, seeking dismissal of the claims againt them. Each relied upon a different provision: the lessor on s. 192(2) of the Highway Traffic Act and Pembridge on an exclusion in the policy. But the two provisions were similar, in that they hinged on whether or not the vehicle was, without the owner’s consent, in the possession of some person other than the owner. There was no dispute that Henwood had lawfully been given possession of the truck by the lessor, Ontario Car. The question was whether the truck had left his possession when it was taken by Coburn.
Although it does not appear that Henwood (the plaintiff) had brought his own motion for summary judgment, Justice MacDougall granted judgment in Henwood’s favour, finding that Henwood had never relinquished possession of the truck, despite its violent appropriation by Coburn. Accordingly, His Honour declared that the lessor, Ontario Car, was liable as owner of the vehicle.
Despite this finding, His Honour held that Pembridge’s motion for summary judgment should be dismissed, on the basis that the lessor’s insurer might attempt to deny coverage to it (so that Pembridge’s policy might still have to respond).
The key to His Honour’s analysis of the consent issue was the fact that Henwood had, himself, been an occupant of the truck when the accident occurred. It was this that allowed MacDougall J. to infer that even though Coburn had more or less highjacked the truck, Henwood had continued to assert a right to possession as an occupant of the vehicle and accordingly, the truck never left his possession (and therefore, that of Ontario Car, the lessor).
His Honour reviewed the authorities and summarized his conclusions as follows:
[C]onditions placed by the owner on the second party’s possession (such as “you may drive the vehicle, but not anybody else”) do not affect the second party’s possession of the vehicle. In other words, if the owner attempts to place conditions upon the permitted driver’s possession that are disobeyed by the permitted driver and the permitted driver gives consent to a non-permitted driver that results in an accident, that does not affect the permitted driver’s possession of the vehicle, provided the permitted driver remains in the car. The result will be that the owner remains liable. A number of subsequent cases have confirmed this principle.
His Honour felt that the principles of “constructive possession” or even “joint possession” might be applicable here. In what seems to us to be rather anomalous findings of fact, MacDougall J. said:
I find that the very reason that Henwood got into the passenger’s side of the vehicle was that he was asserting his continued right to possession of it. He gave the driver, Coburn, admonitions about driving. Henwood was hoping to convince Coburn not to drive to Barrie and was attempting to try to get Coburn to stop the vehicle. In addition, Henwood’s supplier had specifically made arrangements to have the vehicle rented for the benefit of Henwood and Henwood had approximately $4,000 of meat products in the vehicle. Also, Coburn only got control of the keys by assaulting Henwood and wrongfully taking the keys from Henwood’s possession. Henwood continued to assert possession of the vehicle notwithstanding that he had a disagreement with Coburn about their destination.
It is true, that Henwood continued to assert his right to possession. But it also seems to have been the case, that Coburn completely ignored those assertions. It seems to us that Coburn’s actions amounted to a repudiation of all of the incidents of possession (e.g. the right to exercise physical control) that Henwood was putting foward.
Had Henwood not gotten into the car, he would presumably have continued to assert his right to possession of the truck, but he would have been doing so as Coburn drove away. As matters actually unfolded, his protests were just as ineffectual. Coburn paid no more attention to Henwood’s assertion of possession than he would have done, had he left Henwood behind in the tavern’s parking lot, waving his arms. How can it be said that Henwood retained possession in the one case but not the other?